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THE CASE:

BELGIUM V. SENEGAL

A case brought by Belgium against Senegal regarding the latter’s failure to prosecute former Chadian dictator Hissène Habré. Belgium based its claim on Senegal’s treaty obligation to prosecute or extradite Mr. Habré on allegations of torture and on an alleged customary duty to do the same for crimes against humanity.

FACTS:

Hissène Habré, currently a resident of Senegal, was the President of the Republic of Chad from 1982 until 1990. During that time, he established a brutal dictatorship which by the bias of its political police caused the deaths of tens of thousands of individuals. During his eight year rule, large scale violations of human rights were allegedly committed including arrests of actual or presumed political opponents, detentions without trial or detentions under inhumane conditions, mistreatments, torture extrajudicial executions and enforced disappearances. He has since resided in Senegal where he was granted political asylum from the Senegalese Government

Proceedings have commenced and failed against him in the Republic of Chad, Senegal, and most recently in Belgium. Belgium issued an international arrest warrant for Habré in 2005 for charges of crimes against humanity, war crimes, torture and serious violations of international humanitarian law.

A Senegalese court ruled that it lacked jurisdiction to decide on the extradition request, and the Senegalese government referred the Habré case to the African Union (AU) for a decision on how Habré should be tried. The AU created a Committee of Eminent African Jurists and, on its recommendation, asked Senegal in July 2006 to prosecute Habré “on behalf of Africa.” Senegal accepted the AU mandate and amended its legislation to give its courts extraterritorial jurisdiction over international crimes but for years raised obstacle after obstacle to Habré’s trial.

On 19 February 2009, Belgium instituted proceedings against Senegal before the International Court of Justice in respect of a dispute concerning Senegal’s obligation to prosecute or extradite Hissène Habré pursuant to Article 7(1) of 1984 Convention against Torture and customary international law.

o Belgium requested the Court to indicate provisional measures requiring Senegal to take all steps within its power to keep Habré under the control and surveillance of the Senegalese judicial authorities.

ISSUE:

Whether or not Senegal breached its obligation under Article 7(1) of the Convention Against Torture

What is the nature and meaning of the obligation to prosecute laid down in Article 7(1) of the Convention Against Torture?

ARGUMENTS:

BELGIUM

o

Belgium alleges that Senegal has failed to meet its international obligations under Article 7(1) of the Convention Against Torture

o

Also other binding international law by not prosecuting Habré domestically or extraditing him. According to its main drafters, an “essential purpose” of the convention was “to ensure that a torturer does not escape the consequences of his acts by going to another country,” and a key obligation, contained in article 7, was to “prosecute or extradite.” Belgium also alleges that Senegal’s failure over many years to establish extraterritorial jurisdiction over torture in accordance with article 5 continues to have consequences for the case.

SENEGAL

o

Senegal contested the ICJ’s jurisdiction on the ground that no dispute existed between the parties regarding the interpretation of the Convention or under any other relevant rule of international law, as required by Article 30 of the Convention and the parties™ declarations accepting the ICJ’s jurisdiction.

o

In this regard, Senegal claimed that it never opposed or refused to accept the extent

or

the principle of the obligations imposed by the Convention against Torture.

o

Senegal acknowledges its obligation to prosecute or extradite under the Torture Convention and says it still intends to try Habré in Senegal and is also considering Belgium’s latest extradition request.

o

Senegal maintains that it has not violated the Torture Convention and argues that such

a

complex and costly prosecution takes time and has required overcoming logistical

and financial challenges.

o

Senegal notes that it amended its laws and constitution to give Senegalese courts jurisdiction over Habré’s alleged crimes and asserts that it took years to secure international funding to cover all the trial costs.

LOWER COURT RULING (RTC/CA)

A Senegalese judge indicted Habré on those charges but, after political interference by the Senegalese government, which was denounced by two UN human rights rapporteurs, appellate courts dismissed the case on the grounds that Senegalese court slacked jurisdiction to try crimes committed abroad.

SUPREME COURT RULING (RULE & APPLICATION)

The ICJ ruled that Senegal was indeed in breach of its obligations under the Convention and should proceed without further delay to the prosecution of Habré. It cannot rely on its internal law or financial difficulties to evade the implementation of this obligation.

The Court considers that Article 7(1) obliges the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. This obligation may or may not result in the institution of proceedings, in light of the evidence before the authorities. However, if the State in whose territory the suspect is present has received a request for extradition, it can relieve itself of its obligation to prosecute by acceding to that request. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.

Although the prohibition of torture is a norm of jus cogens and customary international law, the obligation to prosecute alleged perpetrators of acts of torture under the Convention only applies to facts that have occurred after the entry into force of the Convention for the State concerned

Thus, Senegal’s’ obligation to prosecute does not apply to acts allegedly committed before the Convention entered into force for Senegal on 26 June 1987. It is implicit in Article 7(1) that the obligation to prosecute must be implemented within a reasonable time, in a manner compatible with the object and purpose of the Convention.

Having failed to adopt all measures necessary for the implementation of its obligation under Article 7(1) as soon as possible, in particular, once the first complaint had been filed in 2000, Senegal has breached and remains in breach of its obligations under Article 7(1) of the Convention Against Torture.